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The spotlight has shown brightly, in recent months, on the problems and issues raised in connection with the Scottsdale Police Department Crime Lab. These issues and concerns have been the focus of a hearing before Maricopa County Superior Court regarding a total of 11 defendants, each charged with driving under the influence (DUI) in the city of Scottsdale.

According to a ruling by Judge Pro-Tempore Jerry Bernstein, each defendant was challenging the accuracy of an instrument, known as the Clarus 500, used by the crime lab in order to process biological evidence collected by law enforcement officers as part of an investigation of DUI cases. Prosecutors had planned to introduce the biological evidence and test results in each of the cases involved. These 11 cases were consolidated for a 17-day hearing as the challenges raised by each defendant were similar.

In Scottsdale and communities that are close by, it is important that you should consult experienced Arizona DUI lawyers like those associated with the Law Offices of Craig W. Penrod, P.C. if you are dealing with a DUI where the evidence was tested by the Scottsdale Police Department Crime Lab.

According to the ruling, the crime lab routinely utilizes the Clarus 500, manufactured by Perkin Elmer in order to process biological samples in DUI cases and each of the 11 defendants had a biological sample taken and processed by the crime lab using the Clarus 500.

Rule 702 of the Arizona Rules of Evidence states that "a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case."

Over the course of the hearing, numerous witnesses, both from the state and defense testified. It was stipulated by the attorneys and the judge that gas chromatography, such as the procedure used in these cases is accepted by the scientific community. Thus, the issue under consideration by the judge was whether or not the methods or actions by the crime lab complied with Rule 702(d) of the Arizona Rules of Evidence.

Kris Whitman, the manager of the crime lab, testified during the hearing that the device from Perkin Elmer was validated in July 2009 and no significant repairs needed to be done upon delivery and the initial validation. However, the device had failed to analyze data completely from time-to-time resulting in the need to retest the samples. Richard Bond, a forensic scientist at the crime lab, testified that the instrument is calibrated during the testing of each batch of materials. The state presented evidence that the test results for the consolidated defendants were accurate. In fact, the judge described as "compelling" an argument by the state that the individual defendants could have had the second sample analyzed by an independent lab if there was a basis for questioning the validity and reliability of the results provided by the crime lab.

Thus, the question for the judge was whether or not a ruling on the admissibility of the results of the crime lab device could be made based upon Rule 702 of the Arizona Rules of Criminal Procedure. The judge wrote that he realized a need to make a finding on the reliability of the instrument.

All tests of blood samples that are conducted by the crime lab are validated by a second criminalist, thus, the test was conducted a second time and was analyzed for accuracy if a problem was observed. Additionally, the judge noted that the American Society of Crime Laboratory Directors sends people to crime labs, including the Scottsdale Police Department Crime Lab, in order to conduct inspections and audits. The crime lab had previously been found to be in compliance with ASCLD Labs requirements.

Chester Flaxmeyer testifying for the defense, indicated that auditors do not look at all cases, data or procedures. The defense called into question the reliability of the controls and calibrators and that the auditors are only concerned that a lab follows the minimum criteria for testing of biological samples and that the lab being audited has the appropriate information and procedures in place. In his ruling, the judge stated that these questions were not significant enough to justify suppression of he test results for these 11 defendants. The judge did state that the defendants should be allowed to present evidence or question the state's evidence through testimony.

The defense also presented testimony regarding a number of dropped data instances, which led them to question the reliability of the crime lab device and that the crime lab device should have been taken out of service. The defense said that an investigation aimed at avoiding a recurrence of the problem and a determination of the cause the problem should have been undertaken. There was no testimony showing that the crime lab device was taken out of service in an attempt to determine the cause of the malfunctions. Plus, there was testimony indicating that on more than one occasion, vials containing biological samples were mislabeled.

The crime lab has adopted methods and procedures consistent with ISO 17025 requirements. Those standards provide that if an instrument is not in conformance with those standards should be taken out of service. Kris Whitman testified during the hearings that work which is not in conformance with ISO 17025 requirements is not consistent with established protocols. Also, the Scottsdale Police Department Forensic Service Blood Alcohol Analysis Procedure Manual lll.2. Methods, has defined nonconforming work as a situation where there is an insufficient volume received for testing of the sample. The manual, also, outlines procedures regarding nonconformance.

The judge wrote that the ISO standards appear to be more definitive in regard to nonconformance, stating that “identification of nonconforming work or problems including with testing can take place at various places within the management system and technical operation. Included are quality control and staff observations or supervision.” The standards also indicate that: “Where the evaluation indicates that the nonconforming work could recur or that there is doubt about the compliance of the laboratory's operations with its own policies and proceedings.”

The judge wrote in his ruling that it is significant that the crime lab device had never been taken out of service and the errors have not been corrected when issues or problems developed and that no root cause analysis has been conducted to determine the reason for the problems exhibited by the instrument. And, not all of the errors or irregularities were identified by the criminalists in the lab as they were discovered by defense attorneys during pretrial interviews with the criminalists.

In his ruling, the judge stated that he was not relying on the opinions of the defense experts even though his ruling made reference to the testimony of several experts. The judge wrote that he was basing his decision more on the inadequacies and unreliability of the crime lab device in question. The judge also wrote that most of the arguments made by the defense are not persuasive, but that questioning the integrity of the samples and the shelf life of samples or solutions, would certainly be issues that a jury could consider.

The judge wrote that the "court is charged with being a gatekeeper. If the results of the blood analysis are allowed into evidence in a particular case, then it would be incumbent upon the jury to determine its weight." The judge stated that an issue of credibility or a "battle of the experts," would have the potential for every defendant with a sample tested using the crime lab device to "expect a presentation of least 17 days of technical testimony involving the practices, procedures and errors associated" with the crime lab device.

At the same time, the judge found that this was not a "mere issue of credibility" and this was not a “battle of the experts.” The judge stated that if the court is "the gatekeeper, then it acts as a filter to allow in scientific evidence that is ruled to be reliable as per Rule 702 of the Arizona Rules of Criminal Procedure." The judge also disagreed that the defendants were attempting to “subvert the adversary system.”

Ultimately, the judge ruled that "given the errors or problems and the refusal to determine the why or the basis for them, significant questions arise as to the reliability and confidence in this gas chromatography instrument. Although there are policies and procedures that purport to act as safeguards, it is apparent that they haven't been sufficient."

The judge's findings regarding Rule 702 of the Arizona Rules of Criminal Procedure: "In regard to subsection (a), the criminalist's scientific and technical knowledge is relevant and would assist the trier of fact in understanding the evidence. As to subsection (b), the testimony of the criminalist is based on sufficient facts or data." Thus, the ruling granted the motion to suppress results of the blood tests for the 11 defendants that were involved in the court challenge as the judge stated: "as indicated previously, the parties have stipulated that gas chromatography is accepted within the scientific community. Therefore, the court rules that the proposed testimony is based on reliable principles and methods. However, based upon the evidence presenting during the course of these proceedings, the court is convinced that the principles and in particular, the methods were not properly applied, as required under subsection (d)."

It is important that your DUI legal situation should be handled by expert professionals with the experience possessed by the attorneys at the Law Offices of Craig W. Penrod, P.C.

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About the Author

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.